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Mr Cherrie inspected the caravan at the seller's home. The roof was raised for inspection; the seller and a friend demonstrated how to lower the roof. After inspection, Mr Cherrie paid $2,650 in cash, received registration documents and some accessories, and towed the van away. Two days later, when he raised the roof, a rotten wooden beam caused the roof to collapse. He also discovered non-functioning appliances: the television would not operate and the internal fridge did not work on gas or electricity. The respondents refused to accept return of the caravan.

Mr Cherrie brought a claim in the Victorian Civil and Administrative Tribunal seeking a refund (the purchase price of $2,650) on the grounds that the caravan did not fulfil its purpose, was not of acceptable quality, and the respondents had misled him about the caravan. The hearing occurred on 16 August 2017 and Member A Smith delivered reasons and an order on 19 September 2017 dismissing the application.

Why the court decided this way

The Tribunal's decision turns on three linked propositions:

1. The consumer guarantees in s54 of the Australian Consumer Law apply only to supplies made "in trade or commerce". The Tribunal applied the "commercial flavour" test (as explained in Boogs v Missen) and concluded that the transaction was a private, one-off sale by an owner of a chattel who was not in the business of selling caravans. The sale therefore lacked the necessary commercial flavour and s54 did not apply.

2. The sale had been explicitly offered as "sold as is" and the advertisement invited inspection. The applicant did inspect the caravan inside and out, and the Tribunal treated that inspection as relevant to excluding any implied statutory warranties arising under provisions such as s19 of the Goods Act (which typically require seller's engagement in business or purchaser reliance on seller skill). Because the buyer had inspected the goods, no implied warranty under the Goods Act applied.

3. In private-sale circumstances, the Tribunal observed that a claimant might still obtain a remedy by proving a common law duty not to misrepresent or a duty to disclose, or negligent misrepresentation. However, the facts did not establish that the respondents knew of the defects or that they made actionable representations; the respondents said very little and the applicant relied on his own judgement during inspection. The Tribunal therefore found there was no negligent misrepresentation or failure to disclose.

These findings together disposed of the claim. Because statutory guarantees did not apply and no tortious misrepresentation or non-disclosure could be proven, the applicant had no established legal basis for a refund or other remedy. The application was dismissed.

Before and after state of the law

Before this decision, the applicable legal principles were already articulated in higher courts and earlier VCAT decisions:

• Section 54 ACL applies only where a supply is made "in trade or commerce". The "commercial flavour" test identifies factors relevant to whether a transaction is within trade or commerce. Member Smith relies on the exposition in Boogs v Missen [2017] VSC 50, which itself summarised earlier authorities (Re Ku-Ring-Gai and Concrete Constructions).

• The Goods Act (s19) and common law impose implied warranties or responsibilities in certain circumstances, but those provisions often presuppose business activity by the seller or reliance by the buyer on the seller's skill.

• VCAT precedent (Deputy President Lulham in Boogs v Missen (Civil Claims) [2017] VCAT 835) recognises that private sales can give rise to remedies outside the ACL where a seller has engaged in negligent misrepresentation or withheld information they knew and should have disclosed.

Cherrie v Likopoulos does not alter these principles. Instead the decision applies them to a straightforward set of facts and confirms that:

• Private, one-off sales advertised on eBay and conducted by non-dealers remain generally outside the scope of s54 ACL absent indicia of commercial activity or business dealing.

• Explicit "sold as is" language combined with an invited and conducted inspection weighs strongly against finding implied statutory warranties.

• The route to relief for purchasers of privately sold goods remains, in appropriate cases, by proving non-statutory tortious causes of action (negligent misrepresentation / concealment), but successful proof requires evidence that the private seller knew of defects or made representations that the buyer relied upon.

Therefore, the decision is consistent with pre-existing law; it confirms the approach rather than shifting doctrine.

Key passages with plain-English translation

Below I identify the Tribunal's pivotal statements and translate them into plain English.

1. Tribunal statement: "I find that this transaction does not have a 'commercial flavour' and therefore the s54 ACL guarantees do not apply. The respondents did not act in trade or commerce in the sale or advertising of the caravan."

   • Translation: The sale was a private, one-off sale by an owner, not the kind of business transaction that the consumer guarantees were designed to cover. So the buyer cannot rely on the ACL protections under s54.

2. Tribunal statement: "The caravan was expressly sold on an 'as is' basis and the applicant was encouraged to make an inspection."

   • Translation: The seller warned buyers the caravan would be sold in its existing condition and told prospective buyers to check it out themselves. That warning, and the fact the buyer did inspect, means the buyer took on the risk of visible defects.

3. Tribunal statement: "There was no evidence that the respondents knew any more or would be able to judge any better than the applicant whether the caravan was or was not 'OK'."

   • Translation: The Tribunal did not accept that the seller had superior knowledge of defects. Since the seller did not know about the rotten beam (or at least there was no evidence she did), she cannot be blamed for failing to disclose it.

4. Tribunal statement: "I do not find that the respondents were negligent in their statements about the caravan or in failing to disclose any information about the condition of the caravan."

   • Translation: There was no proof the seller lied, made careless claims, or deliberately hid defects. So tort claims fail.

These passages encapsulate the Tribunal's reasoning: private sale; 'sold as is'; inspection by buyer; no knowledge or misrepresentation by seller.

What fact patterns trigger this precedent

This decision will be persuasive in cases with this factual profile:

• Owner-seller sells a used chattel in a one-off transaction (not a business of selling such items).
• Item is advertised privately (for example via an individual eBay listing placed by a family member/agent).
• Advertisement contains explicit "sold as is" wording or equivalent disclaimers, and invites inspection.
• Buyer attends the seller's premises, inspects the goods inside and out, or the seller demonstrates operation of an item (for example, the caravan roof).
• Subsequently latent defects emerge which were not visible on inspection, and the buyer seeks remedies under the ACL or under implied warranties.
• There is no evidence the seller knew of the latent defects, made active statements about the absence of defects, or induced reliance by the buyer on the seller's special skill or knowledge.

In such patterns, Cherrie v Likopoulos supports a finding that s54 ACL will not apply because the transaction lacks 'commercial flavour'; implied goods warranties are unlikely to apply if buyer inspected; and tortious relief requires positive evidence of seller knowledge or misrepresentation.

Conversely, fact patterns that may avoid this precedent include:

• Repeat sellers or persons whose conduct reveals commercial activity in selling similar goods (e.g. frequent eBay dealers).
• Sellers who make express claims about condition or conceal known defects.
• Transactions where the buyer demonstrably relied on the seller's expertise (for example, purchaser asked seller for advice about mechanical soundness and relied on that).

How later courts have treated it

As a VCAT member decision, Cherrie v Likopoulos is a tribunal decision that applies and cites higher authority rather than establishing new binding precedent. The judgment follows the approach of Boogs v Missen (VSC) and the VCAT Boogs decision, reinforcing a consistent VCAT line for private sales.

Subsequent tribunals will likely cite this decision for the proposition that:

• A private sale listed on eBay by an owner, accompanied by "sold as is" and an invitation to inspect, typically falls outside s54 ACL.
• Buyers who inspect goods bear the risk of visible defects and cannot rely on implied warranties where the statutory preconditions are absent.

Because the judgment mainly applies established authority and fact-driven tests, it is useful precedent for similar civil-claims matters in VCAT but is not a high court authority. Practitioners should treat it as persuasive in tribunal contexts and for guidance on applying the 'commercial flavour' test in straightforward private sale disputes.

Still-open questions

While Cherrie v Likopoulos is clear on its facts, it leaves or confirms several recurring issues that often require careful, fact-sensitive analysis:

1. Where is the line between an eBay listing by a private owner and conduct amounting to 'in trade or commerce'? The judgment applies the 'commercial flavour' test but does not provide a checklist. Close cases, frequent sellers, multiple listings, use of agent accounts or commercial language, remain challenging.

2. How will courts treat intermediary activity (placing an advertisement) when the intermediary is a family member? Here the son uploaded the listing as agent for his mother; the Tribunal treated him as agent and held the sale was still private. Distinguishing agent activity by a dealer versus a mere facilitator remains a practical issue.

3. What degree of seller knowledge will found an actionable duty to disclose in private sales? The Tribunal required evidence the seller "knew any more" than the buyer. But later disputes often centre on whether constructive knowledge or suspicion (for example, visible water staining inside) suffices.

4. How potent is "sold as is" as a shield? While this decision treats it as significant, statutory regimes and consumer protection sometimes limit the effect of disclaimers, especially where statutory guarantees do apply. The effectiveness of such disclaimers will turn on whether s54 applies in the first place.

5. Interaction between inspection and latent defects: The judgment accepts an inspection undertaken by the buyer will exclude reliance on seller warranties, but inspectors have limits. If the seller actively concealed defects during inspection, different results may follow. The boundary between a thorough inspection and concealed latent defects remains a point of dispute.

Practitioners advising buyers should emphasise the risks of private 'as is' purchases and recommend independent mechanical or specialist inspection for significant items. Sellers should be advised to be explicit about the private nature of a sale if they do not wish ACL guarantees to apply but must be cautious not to misrepresent or conceal defects.

Concluding note: Cherrie v Likopoulos performs the practical function of applying well-known legal standards to an everyday consumer dispute. It reinforces that the ACL's protections are oriented to commercial supply contexts, and that the buyer who inspects a privately sold chattel marked "as is" will face an uphill task proving statutory or tortious claims unless there is evidence of seller knowledge or misrepresentation.